She will not protect the Constitution — or even live up to Sen. Durbin’s standard.
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No one would disagree that as society changes, so must laws and practices. That is why the Constitution allows amendments and legislatures exist. Our political system leaves most decisions on “change” up to the legislative and executive branches. Turning a group of nine jurists, irrespective of how diverse and empathetic, into a continuing constitutional convention puts all liberties at risk.
WHICH BRINGS US BACK to the question: what kind of justice would Sonia Sotomayor make?
Her overall judicial record may look moderate, but her opinions in several critical cases — President Obama’s five percent — cause real concern.
There is Ricci v. Destefano, for instance, the much noted case in which New Haven tossed the results of a carefully created promotion test for firefighters because it did not like the racial composition of those who passed. The 2nd Circuit, in an opinion joined by Judge Sotomayor, perfunctorily affirmed the verdict for the city. Yet without question the city had acted in a racially discriminatory fashion. And the city appeared to base its decision on political considerations, not any reassessment of “business necessity.”
Sotomayor’s opinion was even worse on procedural grounds. Her one paragraph dismissal seemed intended to limit the likelihood of Supreme Court review. Yet Judge Jose Cabranes, a Clinton appointee, complained that the controversy involved “significant questions of unsettled law,” and was a case of first impression with no relevant Supreme Court precedent. The high court took the case and the majority of five ruled for the firefighters. The minority of four also disagreed with Sotomayor’s opinion, indicating that the case should have been remanded for trial to assess the city’s conduct.
Another worrisome case is Didden v. Village of Port Chester (New York), in which Judge Sotomayor demonstrated her disdain for property rights. In 1999 the city created a “redevelopment” area and designated a developer to handle all land seized by Port Chester. In 2003 he asked the property owners who planned to build a pharmacy on their land for either $800,000 or a half interest as partner in the project. They refused, and the next day the city condemned the property, transferring it to the developer so he could build a Walgreens. Sotomayor dismissed the owners’ claim in six paragraphs.
Judge Sotomayor said the statute of limitations for the redevelopment law expired in 2002 — a year before the disputed taking occurred. She went on to uphold the extortionate seizure of property as required by the Supreme Court decision in Kelo v. City of New London. Yet the majority in that case warned: “the mere pretext of a public purpose, where its actual purpose was to bestow a private benefit,” was not a “public use” as required by the Constitution. And what could be a better example of the use of eminent domain for private benefit than a well-connected developer getting the city to back his attempt at private extortion?
Then there is Maloney v. Cuomo, which involved a challenge to state gun restrictions after the Supreme Court voided Washington, D.C.’s gun ban in District of Columbia v. Heller. Judge Sotomayor dispensed with the claim in an 11-word conclusion relying on an 1886 case (Presser v. Illinois) which applied the 2nd Amendment only to the federal government. However, Presser did not address the so-called “incorporation” doctrine, by which the Bill of Rights was applied to the states through the 14th Amendment (the “incorporation” process did not begin until decades later).
Moreover, in Heller the Supreme Court for the first time affirmed an individual right to own firearms. The Court distinguished Presser and indicated that an inquiry into incorporation would be necessary in the future. In fact, the liberal 9th Circuit confronted the challenge, ruling in April that the 14th Amendment did “incorporate” the right to own firearms. Judge Sotomayor apparently relied on ancient precedent to avoid having to make a pro-gun ruling.
In Hayden v. Pataki Judge Sotomayor ruled that the Voting Rights Act did not bar states from disenfranchising felons. Indeed, the 14th Amendment explicitly authorized states to do so. In three short paragraphs the judge asserted that the law was clear — after the majority spent 36 pages detailing evidence on why the VRA did not intend to overturn a nondiscriminatory process predating the sort of discrimination the VRA was passed to combat.
Perhaps most important is the case which received little attention but which underlies every Supreme Court nomination: Roe v. Wade. Judge Sotomayor has said nothing about the issue and her few rulings on the issue shed little light. However, the White House has assured its supporters on the issue. Moreover, the Puerto Rican Legal Defense and Education Fund in which she was active was a leading proponent of abortion.
The issue is not whether one believes abortion should be legal. But Roe does not deserve to be called constitutional law. Rather, it is an act of judicial usurpation, unsupported by constitutional purpose, original intent, and legal precedent. For a nominee for the high court to embrace Roe suggests that they will not carry out their duty to faithfully interpret and apply the Constitution.
ONE FINAL ISSUE OF NOTE is the use of international law to interpret the U.S. Constitution and law. No doubt, thoughtful legislators will consider foreign experiences in assessing social problems and deciding how to resolve them.
But as Steven Groves of the Heritage Foundation detailed, Judge Sotomayor appears to believe that foreign cases should be used by judges — and justices — to shape U.S. law through judicial interpretation, never mind what the American legislators who passed the law believed.
Earlier this year Judge Sotomayor opined: “international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our legal system.” She also declared: “unless American courts are more open to discussing the ideas raised by foreign cases, by international cases, that we are going to lose influence in the world.” That’s a dubious claim, but even if true, why should the judiciary worry about America’s international influence?
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
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